Citation Nr: 0737050
Decision Date: 11/26/07 Archive Date: 12/06/07
DOCKET NO. 06-23 495 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to service connection for a right knee
disability.
2. Entitlement to service connection for left knee
arthritis.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans'
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. L. Krasinski, Counsel
INTRODUCTION
The veteran served on active duty from February 1990 to April
2002.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a June 2005 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Portland,
Oregon, which denied entitlement to service connection for
left knee arthritis and for a right knee disability as
secondary to the service-connected left knee patellofemoral
syndrome.
In April 2007, the Board remanded the matters on appeal.
In September 2007, the veteran testified before the
undersigned at a hearing at the RO. A transcript of that
hearing has been associated with the veteran's claims folder.
The Board notes that in September 2007, additional evidence
was associated with the claims folder. The evidence consists
of VA treatment records showing treatment of the knees. At
the hearing before the Board in September 2007, the veteran
and his representative waived the right to have the case
remanded to the RO for review of the additional evidence.
Therefore, the Board finds that a remand for the RO's initial
consideration of this evidence is not required and the Board
may proceed with the adjudication of this appeal.
38 C.F.R. § 20.1304(c).
The appeal of entitlement to service connection for a right
knee disability is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify
the appellant if further action is required.
FINDING OF FACT
There is no evidence of x-ray findings of left knee
arthritis.
CONCLUSION OF LAW
Left knee arthritis was not incurred in, or aggravated by,
active military service, and may not be so presumed.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002);
38 C.F.R. §§ 3.303, 3.307, 3.309 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify and Duty to Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper VCAA notice must inform the claimant of
any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in her or
his possession that pertains to the claim in accordance with
38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App.
112 (2004).
VCAA notice should be provided to a claimant before the
initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112
(2004); see also Mayfield v. Nicholson, 444 F. 3d 1328 (Fed.
Cir. 2006) (the United States Court of Appeals for the
Federal Circuit stated that the purpose of 38 U.S.C.
§ 5103(a) and 38 C.F.R. § 3.159(b) is to require that the VA
provide affirmative notification to the claimant prior to the
initial decision in the case as to the evidence that is
needed and who shall be responsible for providing it.).
The Board concludes that the veteran has been afforded
appropriate notice under the VCAA. The RO provided a VCAA
notice letter to the veteran in March 2004, before the
initial original adjudication of the claim. The letter
notified the veteran of what information and evidence must be
submitted to substantiate a claim for service connection, as
well as what information and evidence must be provided by the
veteran and what information and evidence would be obtained
by VA. He was also told to inform VA of any additional
information or evidence that VA should have, and was told to
submit evidence in support of his claims to the RO. The
content of the letter complied with the requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).
The United States Court of Appeals for Veterans Claims
(Court) in Dingess/Hartman holds that the VCAA notice
requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)
apply to all five elements of a "service connection" claim.
As previously defined by the courts, those five elements
include: (1) veteran status; (2) existence of a disability;
(3) a connection between the veteran's service and the
disability; (4) degree of disability; and (5) effective date
of the disability. Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
Element (1) is not at issue. Regarding elements (2) and (3)
(current existence of a disability and relationship of such
disability to the veteran's service), the veteran was
provided with notice of what type of information and evidence
was needed to substantiate a claim for service connection.
Regarding elements (4) and (5) (degree of disability and
effective date), the veteran was provided with notice of the
type of evidence necessary to establish a disability rating
or effective date for the disabilities on appeal in a March
2006 letter. Notwithstanding this belated notice, the Board
determines that the veteran was not prejudiced by any defect
in timing. The Board points out that the veteran has not
alleged any prejudice, and the actions taken by VA have
essentially cured the error in the timing of notice.
Further, the Board finds that the purpose behind the notice
requirement has been satisfied because the veteran has been
afforded a meaningful opportunity to participate effectively
in the processing of his claims. For these reasons, it is
not prejudicial to the veteran for the Board to proceed to
finally decide this appeal.
The Board finds that all relevant evidence has been obtained
with regard to the veteran's claim for service connection,
and the duty to assist requirements have been satisfied. All
available service medical records were obtained. VA
treatment records dated from April 2002 to August 2007 have
been obtained. There is no identified relevant evidence that
has not been accounted for. The veteran was afforded VA
examinations in March 2002, April 2004, and April 2005 to
determine the nature and etiology of the knee disability and
to determine whether the veteran had arthritis of the left
knee.
The veteran asserts that the VA examinations were not
adequate. See the veteran's statements dated in July 2006
and August 2005. The veteran requested an independent
medical examination of the left knee. The Board finds that
no such opinion is necessary. The record in this appeal does
not reflect the medical complexity or controversy to meet the
requirements for obtaining an advisory opinion from an
independent medical expert (IME). See 38 U.S.C.A. §§
5103A(d) and 7109. At issue is whether there is arthritis of
the left knee. The record shows that the veteran underwent
several x-ray examinations in order to determine whether
there is arthritis in the left knee. The x-ray examinations
were interpreted by radiologists and medical doctors who have
the expertise to make this determination. Thus, the Board
finds that additional medical examination including an IME is
unnecessary.
Under the circumstances, the Board finds that there is no
reasonable possibility that further assistance would aid the
veteran in substantiating the claim. Hence, no further
notice or assistance to the veteran is required to fulfill
VA's duty to assist him in the development of the claim.
Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v.
Principi, 15 Vet. App. 143 (2001).
Legal Criteria
Service connection will be granted for disability resulting
from a disease or injury incurred in or aggravated by
military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303.
For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"Chronic." When the disease entity is established, there
is no requirement of evidentiary showing of continuity.
Continuity of symptomatology is required only where the
condition noted during service is not, in fact, shown to be
chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
Service connection may also be granted for a disease first
diagnosed after discharge when all of the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Service connection requires competent evidence showing: (1)
the existence of a present disability; (2) in-service
incurrence or aggravation of a disease or injury; and (3) a
causal relationship between the present disability and the
disease or injury incurred or aggravated during service.
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004),
citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see
also Caluza v. Brown, 7 Vet. App. 498 (1995).
In addition, if a veteran served continuously for ninety (90)
or more days during a period of war or after December 31,
1946, and if arthritis became manifest to a degree of 10
percent or more within one year from the date of the
veteran's termination of such service, that condition would
be presumed to have been incurred in service, even though
there is no evidence of such disease during the period of
service. Such a presumption would be rebuttable, however, by
affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101,
1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309.
Once the evidence has been assembled, it is the Board's
responsibility to evaluate the evidence. 38 U.S.C.A.
§ 7104(a). The Secretary shall consider all information and
lay and medical evidence of record in a case before the
Secretary with respect to benefits under laws administered by
the Secretary. When there is an approximate balance of
positive and negative evidence regarding any issue material
to the determination of a matter, the Secretary shall give
the benefit of the doubt to the claimant. 38 U.S.C.A.
§ 7105; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski,
1 Vet. App. 49, 54 (1990), the Court stated that "a veteran
need only demonstrate that there is an 'approximate balance
of positive and negative evidence' in order to prevail." To
deny a claim on its merits, the evidence must preponderate
against the claim. See also Alemany v. Brown, 9 Vet. App.
518, 519 (1996).
Analysis
The veteran contends that he incurred left knee arthritis in
service. Service connection is currently in effect for left
patellofemoral syndrome of the left knee and a 10 percent
rating is assigned under Diagnostic Code 5019 (2007). The
Board notes that VA's General Counsel has held that a veteran
who has x-ray findings of arthritis and instability of the
knee could receive separate ratings under Diagnostic Codes
5003 and 5257. VAOPGCPREC 23-97 (1997); 62 Fed. Reg. 63,604
(1997). See also VAOPGCPREC 9-98 (1998). Under Diagnostic
Code 5003, degenerative arthritis established by x-ray
findings is rated on the basis of limitation of motion under
the appropriate Diagnostic Codes for the specific joint or
joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003.
There is no competent evidence of a diagnosis of arthritis of
the left knee in service. Service medical records show
diagnoses of knee pain secondary to patellar chondromalacia
and patellofemoral pain syndrome of the left knee. However,
the service medical records do not show a diagnosis of
arthritis of the left knee. X-ray examinations of the left
knee in February 1995 and October 1999 were normal. The
January 2002 discharge examination indicates that the veteran
reported having intermittent pain in the left knee. The
examiner noted that the veteran had no current issues and the
disorder was not considered disabling. Examination of the
lower extremities was normal.
The probative evidence of record shows that the veteran does
not have a current diagnosis of arthritis of the left knee.
A March 2002 x-ray examination of the left knee was negative.
The March 2002 QTC examination report reflects a diagnosis of
patellofemoral syndrome of the left knee; there is no
diagnosis of arthritis. An April 2004 VA examination report
indicates that the assessment was patellofemoral stress
syndrome of the left knee. Arthritis was not diagnosed. X-
ray examination of the left knee was normal. An April 2005
VA examination report shows a diagnosis of bilateral
patellofemoral pain syndrome. The examiner indicated that
the x-ray examination of the left knee was normal. The April
2005 x-ray examination report indicates that x-ray
examination of the left knee revealed no osseous
abnormalities. An August 2007 VA treatment record indicates
that the examiner indicated that the assessment was possible
traumatic arthritis. However, in a later notation, the
examiner indicated that the veteran's cartilage was just not
healthy due to previous injury.
The Board notes that a December 2004 VA treatment record
reflects a diagnosis of traumatic arthritis of the bilateral
knees. It is not clear from the record whether the examiner
reviewed the veteran's medical history including the claims
folder and x-ray examination reports.
The Board has the duty to assess the credibility and weight
to be given to the evidence. See Madden v. Gober, 125 F.3d
1477 (Fed. Cir. 1997), and cases cited therein. In
evaluating the probative value of medical statements, the
Board looks at factors such as the health care provider's
knowledge and skill in analyzing the medical data. See
Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also
Black v. Brown, 10 Vet. App. 279, 284 (1997). Other factors
for assessing the probative value of a medical opinion are
the physician's access to the claims file and the
thoroughness and detail of the opinion. See Hernandez-Toyens
v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v.
West, 13 Vet. App. 444, 448-9 (2000).
The Board does not question the VA physician assistant's
skill or expertise. However, the Board finds that the April
2005 VA medical opinion and the x-ray reports dated in April
2005, December 2004, and March 2002 to have greater
evidentiary weight than the December 2004 opinion. The VA
examiner who conducted the April 2005 VA examination report
reviewed the claims folder and the veteran's entire medical
history including the December 2004 treatment record before
rendering a medical opinion as to the diagnosis of the left
knee disability. The VA examiner reviewed the x-ray
examination reports before rendering a diagnosis. Other
factors for assessing the probative value of a medical
opinion are access to the claims file and the thoroughness
and detail of the opinion. See Hernandez- Toyens, supra;
Prejean, supra. The Board also points out the VA x-ray
examinations in March 2002 and April 2004 were interpreted by
radiologists and the x-ray examinations in December 2004 and
April 2005 were interpreted by medical doctors. These
doctors, particularity the radiologists, have greater
expertise to evaluate the data, including x-ray findings, and
to render a medical opinion as to whether there is objective
evidence of arthritis of the left knee. Thus, the Board
finds the April 2005 VA medical opinion and the x-ray reports
dated in April 2005, December 2004, and March 2002 to have
greater evidentiary weight than the opinions in the December
2004 and August 2007 VA treatment records.
The Board acknowledges the veteran's belief that he has
arthritis of the left knee. However, his statements are not
considered competent evidence sufficient to establish a
diagnosis. A lay person is competent to testify only as to
observable symptoms. See Falzone v. Brown, 8 Vet. App. 398,
403 (1995). However, the veteran does not have the expertise
to render a medical diagnosis of arthritis. Although a lay
person is competent to testify as to symptoms, where the
determinative issue involves a question of medical diagnosis
or causation, only individuals possessing specialized medical
training and knowledge are competent to render such an
opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5
(1992). The evidence does not establish that the veteran has
the expertise to render a medical diagnosis.
A grant of service connection requires a showing of current
disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.
Cir. 2004) (holding that service connection requires a
showing of current disability); see also Gilpin v. West, 155
F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service
connection requires that there be a showing of disability at
the time of the claim, as opposed to some time in the distant
past). The probative evidence of record establishes that the
veteran does not currently have arthritis of the left knee.
In summary, the competent evidence shows that the veteran
does not have arthritis of the left knee. As such, the
preponderance of the evidence is against the claim for
service connection for arthritis of the left knee, and the
claim is denied. Gilbert, 1 Vet. App. at 54.
ORDER
Entitlement to service connection for left knee arthritis is
not warranted. The appeal is denied.
REMAND
The veteran asserts that his current right knee disability,
diagnosed as patellofemoral pain syndrome, is caused by the
service-connected left knee disability. He also asserts that
the right knee disability is caused by the service-connected
bilateral pes planus and plantar fasciitis. He also contends
that the right knee disability is due to injury in service.
See the July 2006 VA Form 9.
Regarding service connection for a right knee disability on a
direct basis, there is competent evidence of a possible
association between the right knee disability and service.
In a January 2005 VA treatment record, a VA physician's
assistant indicated that it was likely that the veteran's
right knee was injured in service. It is unclear whether
this physician's assistant reviewed the veteran's service
medical records before rendering this opinion. In April
2005, the veteran underwent a VA examination and the examiner
indicated that he could not render an opinion as to whether
the right knee was incurred in service. The Board finds that
another examination is needed to obtain a competent opinion
as to whether the current right knee disability was incurred
in or is related to disease or injury in service.
38 U.S.C.A. § 5103A(d).
Review of the record shows that the VA examiner who conducted
the VA examination in April 2005 rendered an opinion as to
whether the right knee disability was caused by the service-
connected left knee disability. However, the VA examiner did
not provide a medical opinion as to whether the right knee
disability is aggravated by the service-connected left knee
disability. Secondary service connection is granted where a
service connected disability aggravates a nonservice-
connected disability. Allen v. Brown, 7 Vet App 439 (1995).
See also 38 C.F.R. § 3.310 (in effect prior to and from
October 10, 2006). Thus, the Board finds that a medical
opinion as to aggravation should be obtained. Also, the
examiner did not render a medical opinion as to whether the
right knee disability was caused or aggravated by the
service-connected bilateral pes planus or plantar fasciitis.
The Board finds that such medical opinion should be obtained
as well. The VCAA specifically provides that the duty to
assist includes providing a medical examination or obtaining
a medical opinion when such an examination or opinion is
necessary to make a decision on the claim. 38 U.S.C.A.
§ 5103A(d) (West 2002).
The RO should also obtain all records of the veteran's
treatment for the right knee disability at the Portland,
Oregon, VA healthcare system dated from August 2007 to the
present. VA has a duty to seek these records. 38 U.S.C.A.
§ 5103A(b)(1).
Accordingly, the case is REMANDED for the following action:
1. Obtain all records of the veteran's
treatment for the right knee disability
from the Portland, Oregon, VA healthcare
system dated from August 2007 to the
present.
2. Schedule the veteran for a VA
examination to determine the etiology and
date of onset of the right knee
disability. The veteran's VA claims
folder must be made available to the
examiner for review in connection with
the examination.
The examiner should report all current
right knee diagnoses. The examiner
should express an opinion as to whether
it is at least as likely as not (50
percent probability or more) that the
right knee disability first manifested
during the veteran's period of service or
is medically related to disease or injury
in service.
The examiner should render an opinion as
to whether it is at least as likely as
not (50 percent probability or more) that
the that the veteran's current right knee
disability is caused by or the result of
the service-connected left knee
patellofemoral syndrome, bilateral pes
planus and/or plantar fasciitis (that is,
either singly or by any combination).
The examiner should render an opinion as
to whether it is at least as likely as
not (50 percent probability or more) that
the that the veteran's current right knee
disability is aggravated by the service-
connected left knee disability, bilateral
pes planus and/or plantar fasciitis. If
the examiner finds that the right knee
disability is aggravated by a service-
connected disability, the examiner should
indicate the degree of disability of the
right knee disability before it was
aggravated and the current degree of
disability of right knee disability. The
examiner should provide a rationale for
all conclusions. (The examiner should be
aware that aggravation of a disability
requires that the disability underwent a
permanent increase of the severity of the
underlying pathology of the condition, as
opposed to a temporary exacerbation or
intermittent flare-up of the associated
symptoms. Hunt v. Derwinski, 1 Vet. App.
292 (1991)).
3. Readjudicate the issue on appeal. If
all the desired benefits are not granted,
a supplemental statement of the case
should be furnished to the veteran and
his representative. The case should then
be returned to the Board, if otherwise in
order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
____________________________________________
M. SABULSKY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs